***Please note this article was up to date as at 9 November 2021. For the latest guidance on this topic, please refer to our most recent update.***

The introduction of mandatory vaccination of healthcare workers raises significant HR and legal issues for NHS and independent health employers.

Although it appears that 65% of respondents to the government’s consultation did not want a mandatory vaccine and influential organisations such as the RCN have questioned the efficacy of this approach, the government clearly felt there was a compelling health and safety driven reason to introduce it. This follows the government’s approach in social care, where mandatory vaccination was brought in despite 57% of respondents to the consultation being opposed to it.

Impact on staffing levels

Since the announcement of mandatory vaccination for social care workers, which comes into force on 11 November, we’ve seen some staff leaving the sector creating additional resourcing pressures, and there is a very real risk that the same could happen in the health sector. This is concerning as we approach the winter, which is always a challenging time for the NHS, particularly this year with Covid cases increasing again.  It is heartening to see that the government has taken account of this in delaying the implementation of this move until the spring. This should allow more time for health care employers to continue to engage and encourage staff take up of the vaccination before the deadline, reducing the risk of staff resentment and anger, and leaving healthcare.

Compulsory vaccination raises significant HR and legal issues, and we’ve been working closely with social care employers and the independent health provider’s network. Issues include redeployment of staff, dealing fairly with staff who cannot receive the vaccination for health reasons and managing situations where staff members refuse the vaccination on non-medical grounds.

Legal challenges

In social care we have already seen staff, supported by unions, bringing discrimination based challenges, as well as challenges over the legitimacy of the legislation and human rights implications. It is likely that these issues will be magnified in the health sector due to the strength of the unions.

How should employers approach this?

Despite the challenges, the continuing integration of social care and healthcare provision means that different treatment of social care and healthcare staff, or NHS and independent sector staff, is artificial and hard to justify. There are already many healthcare professionals delivering services in social care settings where compulsory vaccination applies. From a whole system perspective, this could be considered another step towards breaking down artificial barriers.

NHS and independent health employers should start getting ready for mandatory vaccination now. Many of our healthcare clients have already been taking a more assertive approach towards managing take-up and communication with staff, and particularly new starters. The emphasis for managers, at this stage, should continue to be on having open, sensitive discussions with staff who do not want to have the vaccine to ascertain their reasons and try to alleviate any concerns.

If you would like to discuss this topic in more detail, please contact Alastair Currie who is an employment partner at Bevan Brittan, with responsibility for the firm's NHS employment practice.

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